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Lindh Wants Charge Dropped Using Justice Dept. Argument

Lawyers for John Walker Lindh, the Californian accused of fighting with the Taliban, sought today to dismiss a firearms charge against him based in part on the Justice Department's new interpretation of the Second Amendment.

In papers filed in federal court, the lawyers said that charging Mr. Lindh with firearms violations would violate his Second Amendment right ''as an individual'' to use and possess a firearm.

They are seeking the dismissal of a charge that Mr. Lindh used firearms and ''destructive devices'' in crimes of violence. In a recent filing with the Supreme Court, the Justice Department argued that the Second Amendment conferred a broad right to bear arms.

The firearms charge is one of 10 counts against Mr. Lindh, who has pleaded not guilty to all of them. Three of the counts carry a life sentence, and the others carry terms that could add up to 90 years in prison.

In a second set of papers, the defense argued that the government's charges against Mr. Lindh were overly broad and based on nothing more than guilt by association. The indictment alleges that Mr. Lindh received military training in a military camp run by Al Qaeda, but it does not claim that he provided anything to Al Qaeda or the Taliban other than himself, which, his lawyers argue, is not illegal.

''There is nothing illegal about providing military training, and fighting in a foreign military conflict is not per se illegal,'' George C. Harris, one of Mr. Lindh's lawyers, wrote.

''Central to First Amendment freedoms is the right to associate with unpopular and disfavored groups,'' Mr. Harris wrote.

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Today's filings in the Federal District Court for the Eastern District of Virginia, combined with filings on Monday and more expected Thursday, contain the defense's most detailed arguments to date in trying to get the case dismissed. The trial is set to begin Aug. 26.

The Second Amendment argument was in a footnote in today's dense legal motions. Experts said that this case appeared to be among the first to rely on the Justice Department's newly stated view that an individual has a right to bear arms.

In a case in February, the Justice Department said it believed the Second Amendment, which refers to ''a well regulated militia'' and ''the right of the people to keep and bear arms,'' covers an individual's right to keep firearms, whether or not that person is in a militia. The Supreme Court has not ruled on the case.

Mr. Lindh's lawyers quoted from the government's brief today, saying the Second Amendment ''broadly protects the rights of individuals, including persons who are not members of any militia or engaged in active military service or training, to possess and bear their own firearms.''

Mr. Lindh's lawyers said he was protected from any firearms charges for two reasons.

One is the individual right to possess firearms. The second is the principle of ''combat immunity,'' which they argued in papers filed on Monday.

Under that principle, the defense argued that Mr. Lindh's participation in a foreign army as a foot soldier was not illegal because all soldiers in combat are immune from prosecution. They said today that ''combat immunity'' also protected him from firearms charges.